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A cause was remanded to a state court because of the failure of the pelition for removal to sllow tlle requisite jurisdictional facts, after which furtller proceedings were had in the state court, and more tiran six months after the expiration of the time in which a removal might originally have been had, an amended petition was filed, and an order for removal made. that the amended petition did not relate back to the filing of the original petition so as to bring the application within the limitation, and that an order to remand must be granted. Freeman v. Butler, 39 Fed. Hep. 4, disapproved.

At Law. Action by E. K. Brigham and o.t'llers against the C. C. Thompson Lumber Company. Heard on plaintiff's motion to remand to state court. Motion granted. Lamoreux, Gleason, Shea & 'VriglLt, (George G. Green, of counsel,) for' plaintiffs. Dockery & and 11cDonaid & Barnard, (Hayden & Start, of counsel,) fo,r defendant. BUNN, District Judge. This is a motion to remand the cause back to the circuit court of Hayfield county, 'Vis., whence it originated. It was begun in that court on September 24, 1892. The summons and complaint were served, and the time to answer the complaint expired on Odober 14, 18\12. On Odober 12,th, two days before the time to answer expired, the defendant filed a petition and bond, and applied for a removal of the cause to this court. An order for the removal was made by the state court, and a copy of the record was filed in this (',ourt on October 17, 18!l2. On November 1st an answer to the complaint was filed by the defendant in this court, and on November 21st a reply by the plaintitIs. On December 8, 1892, a motion by the plaintiff8 was made to remand the cause to the state court, and the same was so remanded, on the gTound that the requisite jurisdictional faots were not alleged in the petition to entitle the defendant to a removal. The diverse citizenl'lhip of the parties was not set ant, nor did it appear anywhere in the reeord. On April 8, 18B3, four months after the C3:se was sent back to the s'tate court, and after further pl'oceeding's were had by the parties in that oourt, and six months after the time for removal had expired, a seeond or amended petition was filed by the defendant in the conrt for a removal of the cause to this eourt, and an order was made for the removal. The l'ause l'omes np now on a second motion to remand to the state court, and the question is whether, under these cireumstances, a removal of the cause 1:)0 this court ha,s been effected. This court had suppO'sed that the rule was fairly well settled in this circuit that the right of removal depended upon tIle defendant's filing a propr petition alleging all the necessary jurisdictional facts, accompanied by a proper bond, within the time presoribed

882

FEDERAL REPORTER,

vol. 55.

by the act of congress of August 13, 1888; that is to say, before the expirationof' the time for answering the complillnt under the law and practice of the court. . That act gives a definite rule, .ea.'sUy to be complied with; but if the rule prescribed by congress is not binding, but it is rather to be left to the discretion of each state court, then there is no certain rule on the subject. If a second and amended petition may be filed after the cause is properly reo mandedto the state court, and six months after the time prescribed by the act of congress has passed by, and a1'te,r i,ssue has been joined, and proofs taken, and other proceedings had in the state court, subsequent to the remanding of the oause, then there is no rule to govern except the disereUon of the state court, which may be exercised in one case in favor of a remov,al, and in another case, under precisely the same state of facts, against a removal. It has been the uniform holding under all the different jurisdiction acts of congress that the right of a removal and the jurisdiction of the court depended upon a compliance with the law of congress, and not at all upon the action or nonaction of the state court; and it would be very sitrange if, under the act of 1887··88, which prescribes a more stringent rule than has ever before existed except under the original judiciary act of 1789, the practice and ruling of the court should be any different in this respect from what it has been under former statutes. By the jurisdiction act of 1789 the application for removal had to be made by the defendant "at the time of entering his appearance." If, '3;t the time of appearing in the case, the defendant did not make his application and file a petition stating the necessary juris· dictional f.acts, the riglLt was lost. He could not do it afterwards. Under the acts of 1866 (14 Stat. 306) and of 1867 (14 Stat. 558) the appliootion might be made at any time before the trial or final heal'ing of the cause in the state court. These statutes mark tile extreme swing of the pendulum in favor of the jurisdiction of the federal courts over cases begun in the state courts. Under these statutes abuses sprung up. The defend,ant could experiment as long as he plea,sed in the state courts, and then, after the case could be delayed no longer, apply for a removal; so that the right came to be too frequently exercised to delay the cause, rathell' than to obtain an unprejudiced hearing in the fedeI'lal court. The judiciary act of 1875 (18 StUit. 470) in some measure was intended to oorrect these abuses by r 'Sttricting the right. Under that act the petition must be made and filed "before or at the term -at which such cause oould be first tried, and before the trial thereaf." As will be seen, this aet, although a great restriction upon the acts of 1866 and 1867, still gave great latitude in making the application, compared with the Qriginal judiciary act passed by the first con" gresS'. By the acts of 1887 (24 Stat. 552) and of 1888 (25 Stalt. 435) the time was further greatly restricted. Under those aots the defendant must make .and file a petition "at the time, or any time before, the defendant is requi,red by -the la,ws of the state or the rule of the state court in which such suit is brought to am,"wer or

BRIGHAM V. C. C. THOMPSON LUMBER CO.

883

plead to the declaration or complaint of the plaintiff." Tliis rule is definite, and is liberal enough. It was no doubt the object of congress by the acts of 1887 and 1888 to restrict the right of removal in several ways: First, in regard to the person who might l'emove; and, second, as regards the time of making the application. He nL'ed nOlt make the applioation at the moment of appearing in the cause, as under the original judiciary act. He might even answer the declaration or complaint befo1"e moving. On the contrary, he could not wait until the first term I\t which it could be tried, and until aftoc the pleadings were settled, and perhaps proofs taken. He musu make his application before the time for answering expired. In Wisconsin the defendant has 20 days after service of the summons and complairut to answer. Within th.at 20 days, whether answer has been put in or not, he should make his. applicflition and file his petition; and the time cannot be enlarged by order of the state court nor by the stipulation of the parties. Austin v. Gagan, 39 Fed. Rep. 626; Velie v. Indemnity Co., 40 Fed. Rep. 545 ; Rogers v. Van Nortwick, 45 Fed. Rep. 513; Rock Island Nat. Bank v. J. S. Keator Lumber Co., 52 Fed. Rep. 897; Car 00. v. Speck, 113 U. S. 84, 5 Sup. Ot. Rep. 374; Gregory v. Hartley, 113 U. S. 742, 5 Sup. Ct. Rep. 743. As was said by Judge Sawyer in Austin v. Gag>un, 39 Fed. Rep. 626: "'Dhe policy of the law is to require parties to take the first opportunity to change the forum, and, in default thereof, the right is waived." The case relied upon mainly by the defendant as an authority for this second attempt at removal six months after the time for making the application and filing the petition had expired is Freeman v. Butler, Id. 4; and, if the principles of that case can be sustained, it is no doubt an authority in point for the defendant. But the decision inth.a!t case seems to be not only against the great weight of authQrity, but in derogation of the law of congress. The case, in its facts, is somewluLt analogous to this, although the defendant, after the case was remanded t() the stJate court, was morr'c prompt in making his application to amend his peHtlon. 'l'he court held tha;t it had obtained jurisdiction of the case by the second ordeT fOT the removal, on the ground that the second petition for removal in the state court, being filed as an amended petition, related baek to the time when the original petition was filed. The objection in practice to this doctrine is that it sets aside the rule of the ,statute, and substitutes in its place the discretion of the state court. It was held in that case, very properly, that the United St3Jtes c1rcuit court, upon remanding the cause, had lost all control over it, and could neitherent'l"tain a new petition for removal, nor an application to amend the old one. The defendant must make his application to the state court. But, suppose the state court had refused to allow an amendment to the petition; it would folLow that no remoV1al could be had. But, if it be discretionary with the state court to allow an amendment to the petition on a second applioation after the time prescribed by has

884

FEDERAL REPORTER,

vol. 55.

elapsed, then it is difficult [email protected] ,see what bounds can be prescribed to such discretion, 0'1:' why the case may not be removed at any time, even after the time would have elapsed under any law of congress thalt has ever existed. The rule of the United States courts has alWiays been that ll() discretion existed in the state court. It may pass upon the right of removal, and gralltt or refu8e to grant an order; but, so far {tS the question of removal goes, and the jurisdiction to be acquired thereby by the United States circuit court, it is of little moment what the order or dec1sion of the shiite court may be. The jurisdiction of tihe United Soates court will always depend upon 'a COnlpliance or noncompliance with the law of congress in force at the time, and not in any me3!sure upon the decision of the s:tate court. Neither an order refusing nor ,an order granting a removal can affect the jurisdiction of the circuit court. Bank v. Corbett, 5 Sawy. 172; Kern v. Huidekoper, 2 Morr. Trans. 597; Fisk v. Railroad Co., 6 Blatchf. 362; Hatch v. Railroad Co., ld. 105, 111; Kanouse v. Martin, 15 How. 198; Railroad Co. v. Mississippi, 102 U. S. 136; Railroad Co. v. Koontz, 104 U. S. 5. The answer, in theory, to such a doctrine is that there is nothing in substance to be related back to. The petition not alleging the necessary jurisdictional facts, it is a nullity, and the doctrine of relation has no application. There i,s, of ooUflse, no objection on principle to the amendment of a petition. There is no objection to the filing of a second petition, provided it is done within the time prescribed by congress. But when the time goes by the rig'ht is lost. To allow an .amendment to the peti:tion after that is same as allowing a new petition, and either is a clear violation of the law. One purpose of the law was a severe restriction in respect to the time. The object was to require the party to change the forum at once, befoa'e w.aiting to experiment in the state cmlrt; either to contest the tribunal, or for mere purposes of delay. In this CH,se six months had elapsed since the time to answer had expired. Other had been had in the state court after the Clase was remanaed. Since the statutory time for remoY'al had elapsed, there have been two terms of the state court in that county when the cause may have been tried, and it now stands noticed for trial theI' during the present month. The pleading'S have been amended ' in the state court, and the time for amHvering an amended complaint had expired before the se-oond petition for removal was filed. Depositions, it s-ccms, were also taken. If the cause can he removed upon the discretion of the state court by allowing an ampndment to au original and insufficient petition there oan be no limit, so far as time goes, and the removal can be allowed at any tinlE'. Anotherpnrpose of the statute was to secure cert,ainty. It WflS never 00ntemplated that a ease should be dangling for 'so long a time in mid,air between the two courts, neither party nor the court knowing whether it might or might not be removed. The rn\" of the statute is certain, and easy to be eomplied with. This

BCHINDELHOLZ 11. CULLUM.

885

question in regard to the necessity of· setting np the jurisdictional facts has been well settled by a long course of federal decisions, and there is no longer any possible for practitioners not com· plying with it. 1.'he motion to remand the case to the state court is granted.
SCHINDELHOLZ et al. v. CULLUM.

(Circuit Court of Appeals, Eighth Circuit. May 1, 1893.)
No. 192.

L

INSOT,VENCY LAWS-PUBLIC POI.ICy-PREFEREKCES.

The insolvent laws of Colorado are of a purely voluntary character, and the requirement that all assignments made shall be for the benefit of all creditors, alike, does not compel creditors to participate in the benefits of an assignment, or to relinquish any of the ordinary remedies for the collection of their debts when a debtor is insolvent or in failing circumstances. Hence there is nothing in the polley of the law to prevent a nonresident creditor of a failing Colorado corporation from attaching lands thereof which are situated in the state of his residence.
LAND SrrUATED IN ANOTHER JURISDICTION

L

REcmIvER3-POWER OF COURT -INJUNCTION.

A court of equity which has appointed a receiver of lands situated in another state (,1' jurisdiction hns :10 power to enjoin a citizen of such jurisdiction from levying an attachment on such lands, unless he is a party. either in person or by repl'eseutation, to the litigation in which the recdver was appointed. The fact that plaintiff in such attachment suit was erroneously described by his pleadings therein as a citizen of the state in which the receiver was appointed (bis citizenship being neither jurisdictional, nor otherwise material) will not estop him or his successors in interest from showing his tl'Ue citizenship, in a proceeding brought by the receiver to enjoin him. A lien haviDg be,·u established by the attachment sult, which nel.ther the receiver nor the corporation's other creditors could divest, there was nothing to prevent a party to the receivership litigation, and a citizen of that jurisdiction, from taking an assignment of the judgment and lien, with all the rights of enforcement belonging to the original owner. But where a party who had joined in the receivership litigation, and had been active in extending the receivership to the lands in question, afterwards caused suit to be brought in the jurisdiction where the latter were situated, to collect a debt, and thprpby obtained a lien on the lands, the CVU1't had authority to enjoin him t I ,)m enforcing the lien, or in any way interfering with the receiver's po",;\.-'SSion or disposition of the properqr.
LmNS

BY ATTACHMENT.

.. SAlIIE-PLEADING-EsTOPPEL.

"

SAlIIE-PARTIES-PURC'TIASE OF LIENS.

5.

SAME-RIGHT TO ACQUIHE

Appeal from the Circuit Court of the United States for the District of Colorado. In Equity. Bill by Henry B. Cullum, receiver of the Wendling Cattle & Land Company, against Anton Schindelbolz and John G. Benkleman, to enjoin them from enforcing certain judgment liens against the lands of the company. An injunction was granted by the court below, and defendants appeal. Reversed. Statement by THAYER, District Judge: